Citation Nr: 1509182
Decision Date: 03/03/15 Archive Date: 03/17/15
DOCKET NO. 13-29 211 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUE
1. Entitlement to an initial disability rating in excess of 10 percent for rheumatic fever with valvular heart disease, status post mitral valve replacement, for accrued and substitution benefits purposes.
2. Entitlement to an initial compensable disability rating for malaria for accrued and substitution benefits purposes.
3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued and substitution benefits purposes.
4. Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Sean Kendall, Attorney at Law
ATTORNEY FOR THE BOARD
H. Yoo, Counsel
INTRODUCTION
The Veteran had active service from December 1946 to October 1949 and from
October 10, 1950 to October 26, 1950. He died in October 2011 and the appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a
May 2010 rating decision which granted service connection of rheumatic fever with valvular heart disease, status post mitral valve replacement, and malaria by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, and a June 2013 rating denying the appellant's claim for TDIU for purposes of accrued benefits by the RO in St. Paul, Minnesota (which has subsequently been transferred to the Albuquerque, New Mexico, RO).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
The issues of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part.
FINDINGS OF FACT
1. At the time of death, the Veteran was service-connected for rheumatic fever with valvular heart disease, status post mitral valve replacement, at a 10 percent disability rating, and malaria at a noncompensable disability rating, both effective October 30, 2002.
2. Evidence in the claims file at the time of death does not indicate that the Veteran's rheumatic fever was active nor does it demonstrate that the valvular heart disease, status post mitral valve replacement, had a workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray.
3. Evidence in the claims file at the time of death does not indicate that the Veteran had active malaria and or any residuals since separation from service.
4. The evidence of record does not indicate that the Veteran's service-connected disabilities rendered him unemployable at the time of his death.
CONCLUSIONS OF LAW
1. Prior to the Veteran's death, the criteria for an initial disability rating in excess of 10 percent for rheumatic fever with valvular heart disease, status post mitral valve replacement, for accrued and substitution benefits purposes, have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.88b, 4.104, Diagnostic Codes 6309 and 7000 (2014).
2. Prior to the Veteran's death, the criteria for an initial compensable disability rating for malaria, for accrued and substitution benefits purposes, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.88b, Diagnostic Code 6304 (2014).
3. Prior to the Veteran's death, the criteria for entitlement to a TDIU for accrued and substitution benefits purposes were not met. 38 U.S.C.A. §§ 1155, 5121 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.
Concerning the increased rating claim, the Board notes that the appellant's claim for an increased disability rating arises from disagreement with the initial evaluation following the RO's grant of service connection. It has been held that once service connection has been granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
Regarding the issue of TDIU for accrued and substitution benefits purposes, in an August 2011 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for TDIU, including what he needed to provide and what would be obtained by VA.
VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the appellant's claim, which is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist her in obtaining the evidence necessary to substantiate her claim during the course of this appeal. The RO has obtained pertinent VA treatment records. The Veteran, while still alive, also submitted additional records and written statements in support of his claim. Neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.
The Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim.
Regarding his initial increased rating claims, the Veteran was afforded a VA examination in September 2008. The Board finds this VA examination report to be thorough and adequate upon which to base a decision with regard to the appellant's claims. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. See 38 C.F.R. § 3.327(a) (2014); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to these claims.
The Veteran was not afforded a VA examination with respect to the issue of TDIU. In this case, VA was not required to provide an examination in support of his claim for TDIU because the Veteran's employment and the effects of his service-connected disabilities on his employment were discussed in several VA examination reports for the underlying service-connected disabilities. The Board finds that the medical and lay evidence of record are sufficient to determine whether the Veteran was unable to secure or follow any substantially gainful occupation due to his service-connected disabilities. Specifically, there is no indication the Veteran's service-connected rheumatic fever with valvular heart disease, status post mitral valve replacement or malaria had increased in severity as to affect his employability as discussed in the TDIU section below. The Board finds that remand for a retrospective medical opinion regarding TDIU is not necessary given the level of rating's assigned to service-connected disability already indicated the impact of these disorders on employment and because there is sufficient contemporaneous medical evidence regarding the impact of the service-connected disabilities on the Veteran's employment at the time of death. See Chotta v. Peake, 22 Vet. App. 80, 85-87 (2008).
The appellant also indicated in her Substantive Appeal that she wanted to be scheduled for a videoconference hearing. Subsequently, a videoconference hearing was scheduled for December 16, 2014, and the appellant was provided notice of this hearing in November 2014 and another reminder was sent in a letter dated December 2, 2014. However, the appellant failed to report to the scheduled hearing and failed to explain her absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2014).
Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
II. The Merits of the Claims
A veteran's surviving spouse may claim accrued benefits due but not yet paid to the Veteran at the time of his death. Accrued benefits are periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at the date of death and were due and unpaid upon the death of such individual. 38 C.F.R. § 3.1000(a).
Pursuant to 38 U.S.C.A. § 5121(c), an application for accrued benefits must be filed within one year after the date of the veteran's death. 38 C.F.R. § 3.1000(c). In this case the appellant's claim for accrued benefits was timely within one year of the Veteran's death in October 2011. 38 C.F.R. § 3.1000(c).
Entitlement to accrued benefits is to be determined based on evidence that was in the Veteran's file at the time of his death. 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record).
Under 38 C.F.R. § 3.160, a pending claim is a claim which has not been finally adjudicated. A finally adjudicated claim is a claim which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review.
A claim for accrued benefits is derivative of a claim made by a veteran during his life. Accrued benefits, in contrast to benefits such as dependency and indemnity compensation, death compensation, and death pension, are sums owing to the veteran for prior periods, but unpaid at the time of death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996).
A decision on a claim for accrued benefits cannot be based on evidence contained in private medical records that were not on file when the veteran died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. VA records existing at the time of the veteran's death are considered constructively of record even if not contained in the veteran's file at time of death and such records later associated with the file after a veteran died are constructively of record at that time and may be considered. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
However, the appellant is also eligible to pursue the pending claims for substitution purposes, in which case evidence obtained after the Veteran's death may be considered.
At the time of the Veteran's death, he was service-connected for rheumatic fever with valvular heart disease, status post mitral valve replacement, at a 10 percent disability rating, and malaria at a noncompensable disability rating, both effective October 30, 2002.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Rheumatic fever with valvular heart disease, status post mitral valve replacement
The Veteran's rheumatic fever with valvular heart disease, status post mitral valve replacement is currently rated at a 10 percent disability rating under Diagnostic Code 6309-7000. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.
The Board notes that rheumatic fever is rated under 38 C.F.R. § 4.88b, Diagnostic Code 6309. Under Diagnostic Code 6309, the rating criteria only warrants a 100 percent evaluation when rheumatic fever is an active disease; thereafter, the disease is to be rated for residuals under the appropriate system.
None of the medical evidence of record documents that the Veteran has active rheumatic fever. Indeed, the September 2008 VA examiner specifically found the Veteran's claimed rheumatic fever was not currently active. As such, an increased 100 percent rating is not warranted under Diagnostic Code 6309.
However, as noted in Diagnostic Code 6309, the Veteran may also be rated for residuals of the rheumatic fever under the appropriate system. As such, the Board will also consider whether an increased rating is warranted under Diagnostic Code 7000 for valvular heart disease (including rheumatic heart disease) and any other residual of rheumatic fever.
Under Diagnostic Code 7000, for rating valvular heart disease, a workload of greater than seven METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with continuous medication required warrant a 10 percent evaluation. The next higher evaluation of 30 percent is available where a workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. An evaluation of 60 percent disabling is available where there has been more than one episode of congestive heart failure in the past year; where a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, the maximum evaluation of 100 percent disabling is warranted for chronic congestive heart failure; where a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7000.
One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2.
In March 2000, the Veteran underwent a mitral valve replacement. The VA treatment records since that time indicate the Veteran had been on continuous medication.
According to the September 2008 VA examination report, the Veteran underwent an echocardiogram in July 2008 where the ejection fraction was normal at 60 percent, the Holter monitor revealed sinus rhythm, no significant arrhythmia was found, and cardiac perfusion studies revealed a small defect in the apex. Overall, the VA examiner determined the Veteran had normal left ventricular function and normal left ventricular ejection fraction.
The VA examiner opined that following a review of the record, the Veteran's valvular heart disease was more likely than not related to rheumatic fever. The VA examiner, however, added that there was no documentation of a diagnosis of rheumatic fever in service; therefore, he did not meet the criteria for a diagnosis of rheumatic fever while in service. The valvular heart disease was not thought to be a complication of malaria.
Following a review of the above described evidence, it was concluded that there was no medical evidence of record showing that the Veteran had active rheumatic fever. There was also no indication the Veteran's symptomatology supported a 30 percent disability rating under Diagnostic Code 7000: workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 38 C.F.R. § 4.104, Diagnostic Code 7000. Therefore, a rating in excess of 10 percent was and is not warranted. Parenthetically, the Board notes that the evidence of record did support a 10 percent disability rating under Diagnostic Code 7000 as the Veteran had been on continuous medication for this disability.
Malaria
Malaria is rated under Diagnostic Code 6304. A maximum 100 percent rating is warranted for active malaria. The diagnostic code also notes that the diagnosis of malaria depends on the identification of the malarial parasites in blood smears. If the Veteran served in an endemic area and presents signs and symptoms compatible with malaria, the diagnosis may be based on clinical grounds alone. Relapse of malaria must be confirmed by the presence or malarial parasites in blood smears. Thereafter, the diagnostic code instructs that residuals, such as liver and spleen damage, should be rated under the appropriate system. 38 U.S.C.A. § 4.88b, Diagnostic Code 6304 (2014).
According to a September 2008 VA examination report, the Veteran reported that in 1986 he "passed out and he could not breathe" and was taken to a hospital in California where he was told he had "a touch of malaria." He stated he was hospitalized for four days and given shots. The Veteran denied treatment for malaria since this incident. Following a physical examination, the VA examiner determined that malaria was not currently present and had resolved.
A review of the record shows that the Veteran received treatment for various disabilities at the VA Medical Center. However, a review of the VA Medical Center treatment notes of record does not show that the Veteran received any treatment for active malaria or that he had any residuals.
The Board finds that the Veteran is not entitled to a compensable rating for malaria or residuals of malaria. There is no evidence that the Veteran had active malaria and the September 2008 VA examiner clearly stated that the Veteran did not have active malaria or any residuals. Therefore, a compensable disability rating is not warranted. 38 U.S.C.A. § 4.88b, Diagnostic Code 6304 (2014).
Consideration has been given to assigning staged rating. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for malaria. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Extraschedular Consideration
The Board must also consider whether the appellant is entitled to consideration for referral for the assignment of extraschedular ratings for the Veteran's service-connected rheumatic fever with valvular heart disease, status post mitral valve replacement, and malaria for accrued and substitution benefits purposes. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).
An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.
The Board finds that the Veteran's service-connected disabilities were adequately rated under the applicable criteria and that there was no evidence these disorders had resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. There was also no probative evidence of an exceptional or unusual clinical picture. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
TDIU
It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.
For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular veteran is capable of performing the physical and mental acts required by employment, not whether that veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
As stated above, at the time of the Veteran's death, he was service-connected for rheumatic fever with valvular heart disease, status post mitral valve replacement, at a 10 percent disability rating, and malaria at a noncompensable disability rating, both effective October 30, 2002. The combined evaluation for these disabilities was 10 percent. As such, the minimum schedular criteria for a TDIU were not met.
A TDIU may also be assigned pursuant to the procedures set forth in 38 C.F.R.
§ 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in
38 C.F.R. § 4.16(a). The Court has clarified that, where a claimant does not meet the scheduler requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Compensation and Pension Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001).
In this case, the Veteran's initial claim indicated he was last employed in 1990, however, the Veteran's place of employment for the circumstances of his departure from employment was not identified.
While VA treatment records and prior VA examinations indicate the Veteran did receive treatment for his service-connected disabilities, the evidence does not demonstrate, or provide any opinions, that the Veteran was prohibited from doing all forms of employment due solely to his service-connected disabilities. As mentioned, the inability to find a job or to perform a particular job does not meet the standard required for increased benefits on the basis of individual unemployability.
The Board finds that after a careful review of the Veteran's claims file, the weight of lay and medical evidence shows that the Veteran's service-connected disabilities did not rendered him unable to obtain or maintain substantially gainful employment at the time of his death. As noted above, at the time of his death, the Veteran did not meet the schedular requirements for TDIU.
Although the Board has considered the Veteran and the appellant's assertions, there is no medical evidence indicating that his service-connected disabilities renders him unable to obtain or retain substantially gainful employment; therefore, the Board must conclude that the criteria for invoking the procedures of 38 C.F.R. 4.16 (b), for assignment of a TDIU, on an extra-schedular basis, are not met.
For these reasons, the Board finds that the weight of the credible evidence demonstrates that the criteria for TDIU for accrued snd substitution benefits purposes have not been met. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an initial disability rating in excess of 10 percent for rheumatic fever with valvular heart disease, status post mitral valve replacement, for accrued and substitution benefits purposes, is denied.
Entitlement to an initial compensable disability rating for malaria for accrued and substitution benefits purposes, is denied.
Entitlement to a total rating based on TDIU, for accrued and substitution benefits purposes, is denied.
REMAND
Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's remaining claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014).
In this case, it is unclear whether the appellant not yet been provided with VCAA notice that is compliant with the requirements set forth in Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this regard, the Court found that certain additional notice requirements attach in the context of a claim for dependency and indemnity compensation benefits based on service connection for the cause of death. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009). Generally, 38 U.S.C.A. § 5103(a) notice for a dependency and indemnity compensation case must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a condition not yet service-connected. The content of the notice letter will depend upon the information provided in the claimant's application. Therefore, as the record does not indicate the appellant has been provided with a notice compliant with the requirements set forth in Hupp, one should be provided.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Provide the appellant all notice required under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2014), to specifically include notice of 38 C.F.R. §§ 3.1(m), (n), and § 3.301, and any additional notice specified by Hupp v. Nicholson, 21 Vet. App. 342 (2007).
2. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction, issue a Supplemental Statement of the Case to the appellant and her representative. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs